Archibald v. Iacopi

NOURSE, P. J.

Plaintiff sued to recover the unpaid balance on a written contract, supplemented by several oral agreements, to furnish rock, oil, screening and labor necessary for the surfacing of the leasehold of defendants Daniel, husband and wife, in real property to be used for an auto court. He also sought a foreclosure of a mechanic’s lien. In

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a trial to the court plaintiff had judgment for the balance found due, and also had a foreclosure of the lien on the leasehold interest. The action was dismissed as to the defendants Iacopi, the owners of the fee. They are not parties to the appeal.

The appellant (we refer herein to the husband as appellant) urges three grounds for a reversal. (1) The insufficiency of the evidence to support the finding that the work was done in a satisfactory manner in accordance with the contract. (2) The alleged error in the allowance of interest. (3) The foreclosure of the lien on the leasehold.

On the question of the evidence of completion of the contract the usual discrepancies appear. For the respondent testimony was offered tending to show that the work was performed according to the specifications, but that, immediately following completion, a heavy rain fell and on the following day several low spots and puddles were seen on the pavement ranging from a quarter of an inch to two inches in depth. Respondent’s evidence was that in this type of construction covering a large area (35,000 square feet) a reasonable tolerance for such “dents” was plus or minus one-half inch. It was also shown that the soil of the area was adobe which was a particularly hazardous type of soil to build on.

On the part of the appellant, evidence was given emphasizing these depressions in the surface of the pavement particularly following a heavy rain. A witness from the county engineer’s office expressed the opinion that the surfacing had not been done properly or that improper material had been used. He conceded, however, that he knew nothing about the plans and specifications of the contract and could not say whether they had been complied with. Appellant, however, testified that such plans and specifications as had been agreed upon were followed in the construction. The contention is that the work was improperly done. He conceded, however, that he was on the job daily and frequently instructed respondent’s employees as to how they should do the work. It is also significant that at the time of the trial appellant had been operating the auto court on the premises and no evidence was given of loss of trade or of income because of defects complained of.